The Oklahoma Bar Journal April 2026

an exception to the doctrine in the construction defects context, noting other jurisdictions that have extended the doctrine, but explaining that the case-specific facts did not warrant expansion. Proe recognized that the economic loss doctrine could be applica ble in certain circumstances to reaffirm longstanding princi ples separating contract and tort law, such as privity of contract. Furthermore, Proe analyzed the doctrine’s underlying rationale in the construction context and tied that reasoning to Oklahoma Supreme Court precedent outside of the manufacturer’s products liability realm. Is this equation sufficient to result in further application of the doctrine? Often, when courts develop judicial doc trines, they look to other jurisdic tions for guidance. ECONOMIC LOSS DOCTRINE IN OTHER JURISDICTIONS The majority of courts in other jurisdictions have already taken the next step in applying the economic loss doctrine to cases outside of the manufacturers’ products liabil ity context. In its broadest sense, the doctrine could be asserted in any dispute that is governed by a contract. For instance, courts have widely extended the doctrine to cases involving construction defects and professional services. At least 10 other jurisdictions have held that the doctrine bars tort claims involving design profession als and engineers, absent personal injury or damage to property. 48 Two cases – Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP 49 and Terracon Consultants W., Inc. v. Mandalay LESSONS FROM THE APPLICATION OF THE

distinction between contract and tort law.” 45 By adopting and apply ing the doctrine in Proe , the major ity connected the dots: “Oklahoma has not adopted the economic loss rule, by name, outside the manufacturer’s products liabil ity context ... . Nonetheless, that legal principle is consistent with Oklahoma law on the damages available for breach of contract in the absence of personal injury or damage to other property.” 46 Even Judge Barnes’ concurring opinion that affirmed based on privity principles recognized the doctrine for what it could be, pronouncing the economic loss doctrine to be “a legal doctrine that bars recovery in tort actions where a contractual relationship between the parties exist and the losses claimed are purely economic losses.” 47 Proe should not be viewed as an outlier decision as it is consistent with Mills and prior precedent. The majority’s opinion in Proe clarified the boundary between contract and tort law – when a contractual relationship governs a dispute in which there is not personal injury or damage to other property, a party cannot simply assert an alter native negligence claim as an end around for the longstanding privity of contract requirement. The hold ing does not appear to extend the meaning of the economic loss doctrine under Oklahoma law but rather recognizes that it may be a tool or basis to reaffirm these longstanding bedrock principles of contract and tort law. While neither Mills nor Proe expanded the economic loss doctrine, they may have opened the door for applying the doc trine beyond the manufacturers’ products liability context in the future. Mills began by examining

Resort Grp. 50 – among others, serve as anchoring guides in applying the economic loss doctrine to negligence claims levied against design professionals and engineers, typically in a construction defect setting. Both cases also present additional legal rationales worth considering when one is involved in a dispute wherein the economic loss doctrine could apply. Terracon Consultants W., Inc. v. Mandalay Resort Grp. serves as a modern example of a state supreme court extending the eco nomic loss doctrine logic beyond product manufacturers and into construction/professional ser vices. Furthermore, by refusing to permit negligence claims against design professionals in commer cial projects, Terracon emphasized protecting parties’ bargain-based risk allocation via contract and limited unforeseeable tort expo sure for businesses, which fosters economic predictability. Balfour addressed the applica bility of the economic loss doctrine to claims of negligent misrepre sentation brought by a contractor against a design engineering firm that produced construction design plans for the city of Baltimore. At the outset, Balfour explained that there is typically tension between a contractor and an engineer in the design-bid-build model. 51 Generally, the contractor and engi neer each have separate contracts with the owner but no contractual relationship with each other. 52 When delays in the construction project occur, the contractor may blame the engineer for a flawed design (for example, claiming neg ligent misrepresentation based on faulty information in the design documents) despite the lack of a contractual relationship with

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL